1. Chokkalingam Pillai died about 35 years ago leaving no issue, and on his death two widows, Valliammai and Minakshiayi, inherited his properties. The two widows sold certain properties belonging to the estate to pay off the debts incurred by their husband Chokkalingam Pillai, and afterwards they entered into an oral partition by which each got about nine kulies of land; old survey No. 46-C was among the properties thus divided by them and in that partition Valliammai got the western half of this survey number, while Meenakshiayi, defendant 5 in the suit, got the eastern half of this survey number. Valliammai alienated the western half of survey No. 46-C to the plaintiff's predecessor-in-title from whom the plaintiff purchased the same. Valliammai died in 1916. The plaintiff as purchaser of Valli-ammai's right in the western moiety of survey No. 46-C, instituted the original suit for possession of the same from defendants 1 to 4 who were let into possession by the plaintiff's vendor. Defendant 5, Meenakshiayi, put forward her right to possession of the western half on the death of her co-widow. Valliammai, and she executed a lease deed in favour of defendant 1 in respect of the said western portion. The dispute between the parties centered on the question whether on the death of Valliammai, defendant 5 was entitled to possession of the suit properties. This again depended on the question as to the exact effect of the oral partition entered into between the two widows, Valliammai and defendant 5 in or about 1894.

2. The District Munsif dismissed the suit, holding that it was not proved to his satisfaction that Valliammai and defendant 5 divided their husbands' properties with absolute right of ownership and precluding the rights of survivorship inter se.

3. On appeal the learned Subordinate Judge disagreed with the finding of the District Munsif, and came to the conclusion that

“the two widows orally divided their husband's properties with absolute rights as against each and that therefore defendant 5 had relinquished her right of survivorship by the said partition.”

4. He accordingly reversed the District Munsif's decree and granted a decree in the plaintiff's favour and directed the defendant to surrender 46-C.

5. Defendant 5, the co-widow, has preferred the second appeal.

6. On her behalf it was contended by the learned advocate Mr. Patanjali Sastri, that having regard to the admitted fact that the partition between the two co-widows was an oral one, and having regard to the statement in the 8th Edn. of 1914 of Mayne's Hindu Law, para 554 at p. 777 to the effect:

“Where several widows hold an estate jointly, or whether one holds as manager for the others, each has a right to her proportionate share of the produce of the properties, and of the benefits derivable from its enjoyment and the widows may be placed in possession of separate portions of the properties, either by agreement among themselves or by decree of Court …But no partition can be effected between them, whether by consent or by adverse decree, which would convert the joint estate into an estate in severalty, and put an end to the right of survivorship,”

it must be taken to be clear that the oral partition of 1894 between the co-widows must be taken to be one merely for convenient management and that no idea of giving up right of survivorship ever entered into the minds of the parties at that time. Before considering this argument of the appellant, it would be convenient to examine the reasons given by the lower Courts for arriving at the findings. Issue 3 framed in the suit was:

“whether Valliammai and defendant 5 divided their husband's properties with absolute rights of ownership and if so whether such a division is valid in law.”

7. In considering this issue the District Munsif observed as follows:

“the first point for determination is whether at the partition between Valliammai and defendant 5, the latter consented to give up her rights of survivorship in her co-widow's properties. In other words, whether Valliammai had absolute rights of alienation over the suit properties.”

8. After noting that there was no direct evidence on this point as to what happened at the partition he proceeded to consider the recitals in Ex. 8 of 1899, C of 1890 (both executed by Valliammai), and in Exs. K of 1901, and 1 of 1908 (executed by defendant 5), by which the co-widows alienated portions of properties that fell to them in the partition. These sale deeds recite that:

“the vendees are to enjoy the properties absolutely from generation to generation.”

9. In answer to the plaintiff's contention that these recitals in document executed by the two co-widows after the partition, and at a time when there was no dispute between them as to whether they had parted with their rights of survivorship as against each other, would prove that the partition between the two widows was absolute and without the existence of rights of survivorship in each other, the learned District Munsif observed as follows:

“It seems to me that no importance can be attached to the casual recitals contained in these exhibits. These recitals are ordinary ones which we meet with in all sale deeds. They might have been written, in my opinion, without intending that any speccial significance should attach to them. At any rate I am of opinion that in the absence of direct evidence as to what took place at the partition between these widows or of any deed containing the consent of the widows to release their rights of survivorship, it is not safe to draw any conclusion in favour of such release from the recitals in these sale deeds. I therefore find that the plaintiff has not made out that Valliammai and defendant 5 took their share in their husband's properties with full rights of ownership.”

10. He, however, went further, and in para 11 of his judgment held:

“granting for the sake of argument that these widows took their shares with absolute rights according to the decision in Ramakkal v. Ramaswami Naicken . [1899] 22 Mad. 522, an alienation by either of the widows which is to enure beyond the life time of the surviving co-widow is not valid in law. I therefore find issue 3 against the plaintiff.”

11. On plaintiff's appeal, the learned Subordinate Judge as already observed, held that:

“the two widows orally divided their husband's properties with absolute rights as against each other”

and therefore:

“defendant 5 has relinquished her right of survivorship by the said partition.”

12. Referring to the sale deeds Bxs. S, K, and C and I executed by the two co-widows with the recitals referred to already, the learned Subordinate Judge observed as follows:

“we see from the aforesaid foul sale deeds that both the widows executed the sals deeds purporting to confer absolute right to their alienees.”

13. He then proceeded to consider Ex. 2 dated 1st March 1926 by which defendant 5 leased to defendant 1 the western half of survey No. 46-C, i.e, the suit property) wherein it is mentioned that the same fell to the share of Valliammai and on Valliammai's death without heirs, the executant, defendant 5, got the same. The Subordinate Judge remarked with reference to Ex. 2:

“the aforesaid description involves the admission that if Valliammai had left any heir, the latter would have got the lands in preference to defendant 5. That seems to imply that in the oral partition entered into between them, there was a stipulation releasing the rights of survivorship of each to the other,”

and finally he stated as follows:

“apart from what we can gather from the various documents filed in the case, there is no evidence as to whether the partition between the two widows was intended to be absolute as against each other, in other words, whether it contained the provision releasing the right of survivorship in respect of each other (para 20). … Having regard to the language used in defendant 5's lease, Ex. 2, and the four sale deeds referred to above, by which the two widows executed sale deeds purporting to confer absolute title on their alienees, I am inclined to hold that the two widows orally divided their husband's properties with absolute rights as against each, and therefore following the rulings referred to above I hold that defendant 5 has relinquished her right of survivorship by the said partition.”

14. The question therefore is whether the learned Subordinate Judge was justified in finding as he did on the basis of the documents referred to above.

15. I agree with the contention of the learned advocate for the appellant that the onus of proving that the partition that was effected by the co-widows precluded the rights of survivorship in each other is on the person who asserts the same, in this case on the plaintiff, I also agree that the statement in para 554 of (Mayne's Hindu Law edition of 1914) would prima facie help the appellant's contention. It thus being clear that the onus of proving that the oral partition between the two widows involved the parting with of the rights of survivorship on the part of each of the widows is on the plaintiff, the only question before me is whether the plaintiff has discharged that onus.

16. In Ramakkal v. Ramaswami Naicken, it was held by Subramania Aiyar and Boddam, JJ.:

“where the two co-widows entered into a deed which they called a dead of partition whereby they divided the property between them and each gave the other full power of alienation,”

that each widow had released her right of survivorship so as to preclude her from recovering from the alienee after the other co-widow's death the property given by way of partition to the latter and alienated by her. In the case reported in Subbammal v. Krishna, Iyer . [1914] 26 M.L.T 479, Sadasiva Iyer and Spencer, JJ. held that the use of the expressions “santati paramparyamayi” “sarva swathanthra badhayamayi” occurring in such partition deeds between the co-widows is a circumstance from which the intention to give up the right of survivorship may be legitimately inferred. In the case reported in Alamelu Ammal v. Bahi Ammal . [1915] 28 M.L.J 685, there was an oral partition between three daughters each purporting to take one third share absolutely, the Court (Sadasiva Iyer and Napier, JJ.), held that the same involved the relinquishment of rights of survivorship on the part of the daughters: see also Ammani Ammal v. Periaswami Udayan . A.I.R 1924 Mad. 75., by Oldfield and Venkatasubba Rao, JJ.

17. In the present case, no doubt we have no evidence as to what exactly happened at the time of the oral partition of 1894 between two co-widows; but we have the undoubted facts that ever since that partition, each of the co-widows had been dealing with the properties that fell to her share “as if she took the same with absolute rights” under the partition. At a time when no dispute, arose whether right of survivorship was given up by the widows, each widow executed sale deeds with reference to property that fell to her share, specifically purporting to confer absolute title to the alienees using the vernacular expression ordinarily in use to connote the idea of conferring absolute rights on the alienees. These sale deeds containing such recitals and also the particular recital in Ex. 2 referred to by the learned Subordinate Judge constitute, in my view, relevant items of evidence available to the Court to come to a conclusion whether the partition between the co-widows was absolute or not. If the partition was absolute then the reported decisions' leave no doubt and that rights of survivorship have been given up by each of the co-widows under such a partition arrangement. The decision of the Privy Council reported in Mt. Hardai v. Bugwan Singh . A.I.R 1919 P.C 27., seems to support the above view. At p. 109 Viscount Cave observed as follows:

“Further from the time of the arrangemant of 1875 until the commencement of this suit, that is to say, for a period of 38 years all the parties to the arrangement, including the plaintiff, dealt as absolute owners of the property allotted to them and to this, with trifling exceptions, no objection was taken by the other parties to the division. In these circumstances, the true inference appears to their Lordships to be that …… the members of the family agreed and arranged among themselves that the whole property should be at once divided among the daughters and their sons then living, the mother surrendering her claims and each daughter accepting the property allotted to her in severalty in lieu of the undivided share in the whole estate which would have devolved upon her on her mother's death and abandoning her right of survivorship on the death of either of her sisters. Whether this arrangement is binding on the grandsons cannot be determined in this suit and on that question their Lordships expressed no opinion. But the plaintiff at all events is bound by her own arrangement.”

18. In that case no oral arrangement was come to in 1875 to which the daughters were parties and from 1876 each of the daughters dealt with the property allotted to her on the division as her own absolute property. The Privy Council held, as mentioned already, that the proper inference to be drawn was that each daughter accepted the property allotted to her in severalty in lieu of the undivided share and abandoned her right of survivorship on the death of either of the daughters.

19. For the above reasons it seems to me that the learned Subordinate Judge was justified in his finding that the original oral partition arrangement between co-widows was such as precluded the fifth defendant the surviving co-widow, from putting forward her right of survivorship with reference to the properties that fell to the senior widow in the partition. That it is open to co-widow to give up the rights of survivorship in such partition of their husband's estate has been laid down as early as 1866: see the decision reported Rindemma v. Venkataramappa . 3 M.H.C.R 268. at p. 269., The same view has been adopted in the several reported decisions referred to by me already Ramakkal v. Ramaswami Naicken, Sudalai Ammal v. Gomati Ammal . [1912] 23 M.L.J 355, Subbammal v. Krishna Iyer, Alamelu Ammal v. Balu Ammal. The decision of the Privy Council in 24 C.W.N 105 at p. 109(5) also, it seems to me, supports this view. The decision of the learned Subordinate Judge is therefore right and I accordingly dismiss the second appeal with costs.

P.R.S/V.S

20. Appeal dismissed.